`Keeling v. Hars
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`
`In the
`United States Court of Appeals
`for the Second Circuit
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`
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`AUGUST TERM 2014
`No. 13‐694‐cv
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`JAIME KEELING,
`Plaintiff‐Counter‐Defendant‐Appellee,
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`v.
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`EVE HARS,
`Defendant‐Appellant,
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`NEW ROCK THEATER PRODUCTIONS, LLC, A NEW YORK LIMITED
`LIABILITY COMPANY,
`Defendant‐Counter‐Claimant,
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`ETHAN GARBER,
`Defendant.*
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`Appeal from the United States District Court for the
`Southern District of New York
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`No. 1:10‐cv‐9345—Thomas P. Griesa, Judge
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`* The Clerk of Court is directed to amend the official caption in this case
`to conform with the above.
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`SUBMITTED: JUNE 26, 2015
`DECIDED: OCTOBER 30, 2015
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`Before: CABRANES, LIVINGSTON, and DRONEY, Circuit Judges.
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`
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`The primary question presented is whether an unauthorized
`work that makes “fair use” of its source material may itself be
`protected by copyright.
`
`We hold, for substantially the reasons stated by the United
`
`States District Court for the Southern District of New York (Thomas
`P. Griesa, Judge), that, if the creator of an unauthorized work stays
`within the bounds of fair use and adds sufficient originality, she
`may claim protection under the Copyright Act, 17 U.S.C. § 103, for
`her original contributions. We also reject defendant’s challenges to
`the District Court’s
`jury
`charge.
` The District Court’s
`January 11, 2013 judgment is therefore AFFIRMED.
`
`
`
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`STEVEN PARADISE, Vinson & Elkins LLP,
`New York, NY, for Plaintiff‐Counter‐
`Defendant‐Appellee.
`
`EVE HARS, pro se, Los Angeles, CA, for
`Defendant‐Appellant.
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`2
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`JOSÉ A. CABRANES, Circuit Judge:
`
`The primary question presented is whether an unauthorized
`work that makes “fair use” of its source material may itself be
`protected by copyright.
`
`We hold, for substantially the reasons stated by the United
`
`States District Court for the Southern District of New York (Thomas
`P. Griesa, Judge), that, if the creator of an unauthorized work stays
`within the bounds of fair use and adds sufficient originality, she
`may claim protection under the Copyright Act, 17 U.S.C. § 103, for
`her original contributions. We also reject defendant’s challenges to
`the District Court’s
`jury
`charge.
` The District Court’s
`January 11, 2013 judgment is therefore AFFIRMED.
`
`BACKGROUND
`
`Plaintiff‐Appellee Jaime Keeling is the author of Point Break
`Live! (“PBL”), a parody stage adaptation of the 1991 Hollywood
`action movie Point Break, starring Keanu Reeves and Patrick Swayze.
`In the film, Reeves plays a rookie FBI agent who goes undercover to
`infiltrate a gang of bank‐robbing surfers led by Swayze’s character.
`The Keeling‐authored PBL parody parallels the characters and plot
`elements from Point Break and relies almost exclusively on selected
`dialogue from the screenplay. To this raw material, Keeling added
`jokes, props, exaggerated staging, and humorous theatrical devices
`to transform the dramatic plot and dialogue of the film into an
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`3
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` For example, in
`irreverent, interactive theatrical experience.
`Keeling’s PBL parody, Point Break’s death‐defying scene in which
`Reeves’s character must pick up bricks, blindfolded, in a swimming
`pool takes place, instead, in a kiddie pool. Massive waves in the
`film are replaced by squirt guns in the PBL parody. A central
`conceit of the PBL parody is that the Keanu Reeves character is
`selected at random from the audience and reads his lines from cue
`cards, thereby lampooning Reeves’s reputedly stilted performance
`in the movie. Keeling added to the effect that the audience was
`watching the making of the film by creating a set of film‐production
`characters in the PBL parody, including a director, cinematographer,
`and production assistants. Keeling possesses no copyright or license
`with regard to the Point Break motion picture.
`
`Defendant‐Appellant Eve Hars, proceeding pro se on appeal,
`owns production company New Rock Theater Productions, LLC
`(“New Rock”). In 2007, Keeling executed a production agreement
`with Hars, pursuant to which New Rock would stage a two‐month
`production run of PBL from October through December 2007.
`During that time period, Hars conferred with an entertainment
`attorney and the holder of the copyright to the Hollywood
`screenplay for Point Break, and eventually Hars came to believe that
`Keeling did not lawfully own any rights to the PBL parody play.
`Accordingly, after its initial two‐month run, Hars sought to
`renegotiate the terms of the contract upon its expiration and, in
`effect, continue to produce PBL without further payment to Keeling.
`Keeling refused renegotiation, threatened suit, and registered a
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`copyright in PBL, without first obtaining permission from the
`copyright holders of the original Point Break. Keeling’s asserted
`copyright in PBL became effective on January 4, 2008. Hars and
`New Rock continued to stage performances of PBL for four years
`thereafter without payment to or authorization from Keeling.
`
`In December 2010, Keeling brought suit against Hars, New
`Rock, and New Rock investor Ethan Garber, asserting claims for
`copyright infringement, breach of contract, and tortious interference
`with contract. In the District Court proceedings, all parties were
`represented by counsel. After the District Court denied defendants’
`motion to dismiss, see Keeling v. New Rock Theater Prods., LLC, No. 10
`Civ. 9345 (TPG), 2011 WL 1899762, at *1 (S.D.N.Y. May 17, 2011),
`defendants asserted counterclaims seeking, inter alia, a declaration
`that Keeling’s PBL copyright registration was invalid. Upon
`completion of discovery, defendants moved for summary judgment,
`arguing primarily that PBL, an unauthorized derivative work, was
`not entitled to copyright protection as a matter of law. The District
`Court denied defendants’ successive motions
`for summary
`judgment, ruling that a parody that makes “fair use” of another
`copyrighted work may contain sufficient originality to merit
`copyright protection itself. See Keeling v. New Rock Theater Prods.,
`LLC, No. 10 Civ. 9345 (TPG), 2011 WL 6202796 (S.D.N.Y. Dec. 13,
`2011); Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345
`(TPG), 2012 WL 5974009 (S.D.N.Y. Nov. 29, 2012). The District Court
`also rejected defendants’ argument that a script heavily reliant on
`theatrical devices, as was PBL’s, could not lawfully constitute
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`original creative expression deserving of copyright protection. 2011
`WL 6202796 at *1.
` Finally, the Court found that multiple
`outstanding issues of material fact remained—including whether
`PBL constituted a “fair use” parody of Point Break and whether PBL
`contained sufficient originality to merit copyright protection. Id.
`
`In December 2012, the case proceeded to a five‐day trial by
`jury. At the close of the evidence, the parties delivered summations
`focused largely on whether PBL was a parody at all, and if so,
`whether that parody constituted non‐infringing “fair use.” Record
`on Appeal (“ROA”), Keeling v. New Rock Theater Prods., LLC, No. 10
`Civ. 9345 (TPG) (GWG), Dkt. No. 98, at 567‐648 (S.D.N.Y. Dec. 7,
`2012). The District Court then charged the jury, beginning with the
`first question the jury would be asked to answer: “whether [PBL]
`was a fair use by way of a parody of the original movie Point
`Break.” Id. at 652. The District Court declined to enumerate each of
`the four statutory factors pertaining to “fair use,” opting instead to
`attempt to “put a little more content on the discussion,” which the
`District Court believed that the “list of factors” alone lacked. Id. at
`655. The pertinent instructions on fair use were as follows:
`
`Now, the person who creates the derivative
`work has a copyright in that derivative work. Now,
`if the derivative work is simply somehow really a
`copy of the original then it may be somehow called a
`derivative work but it infringes on the owner of the
`original. But if it is what we call “fair use” then it is
`not an infringement on the original and it is a new
`work and it has its own copyright and the author or
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`the creator of the new work owns that copyright as
`well as owns the new work. . . .
`The plaintiff contends that [PBL] is a fair use of
`sections of the script of the original movie. The
`plaintiff contends that this is fair use as a parody and
`a parody, certainly, can be fair use. . . .
`A proper parody is something which generally
`ridicules to some extent, makes fun of, makes light of
`the original. Suppose the original is the very serious
`drama of some kind and if someone comes along
`and makes a parody, it is generally turning it into
`something different, humorous, ridiculous. And if
`that is done it is fair use to use even substantial
`amounts of the script of the original movie. It is fair
`use to even use the high points or the high point as
`long as it is not simply conveying again the original
`movie. If it takes the script of the original movie and
`creates something which uses that script to ridicule
`to make fun of, to make light of to produce humor
`instead of the original seriousness, then that is a
`legitimate parody.
`Now, the amount of script taken from the
`original cannot completely go beyond the needs of
`the parody. In other words, if the parody is for, if
`we could imagine, a third it is not legitimate to copy
`the other two thirds and put them out again. But if
`the amount of script used is reasonably related to the
`production of
`the humor,
`the
`ridicule,
`the
`lightheartedness and so forth that is a legitimate
`parody and that is fair use.
`Now, it is sometimes said that the judge in
`instructing a jury on fair use is supposed to refer to a
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`list of factors. The list of factors is a list of factors
`without much content or meaning. And what I am
`trying do with you now is to refer to the necessary
`factors but I hope put a little more content on the
`discussion. And really thatʹs all I have to say to
`define fair use by way of parody.
`
`
`Id. at 653‐55. No party objected to the District Court’s jury
`instructions. Id. at 668.
`
`The jury returned a verdict in Keeling’s favor in the amount of
`$250,000, finding (a) that Keeling’s use of material from the film
`Point Break was “fair use in the way of a parody,” (b) that Keeling
`was the sole owner of the copyright to PBL, and (c) that defendants
`infringed Keeling’s copyright. Id. at 675‐77. The District Court
`entered judgment on January 11, 2013.
`
`Defendant Hars, now proceeding pro se, appealed. She
`challenges the District Court’s denial of her pretrial motion for
`summary judgment as well as the subsequent jury verdict in favor of
`Keeling.1
`
`
`1 Although Hars suggests in her reply brief that she does not in fact
`challenge the District Court’s denial of her pretrial motion for summary
`judgment and instead appeals only “the pure legal issues raised” therein, see
`Def.’s Reply Br. 9, we treat her appeal, taken as a whole, as a challenge to the
`District Court’s denial of summary judgment as well as the subsequent jury
`verdict.
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`DISCUSSION
`
`Though not a model of clarity,2 Hars’s appellate briefing
`
`primarily raises three issues: first, whether PBL, as an unauthorized
`“fair use,” is entitled to copyright protection capable of supporting
`Keeling’s claim of infringement by a third party; second, whether
`Keeling’s contributions to the work—consisting of individually non‐
`copyrightable elements—could be sufficient to support a copyright
`in PBL; and third, whether the District Court’s jury instructions were
`erroneous. The first two issues relate to the same question: whether
`Keeling’s work was copyrightable. We consider each issue in turn.
`
`I. Challenges to Copyright Law
`
`In general, “where summary judgment is denied and the
`movant subsequently loses after a full trial on the merits, the denial
`of summary judgment may not be appealed.” Schaefer v. State Ins.
`Fund, 207 F.3d 139, 142 (2d Cir. 2000) (internal quotation marks
`omitted). However, this rule does not apply where, as here, the
`district court’s purported error was “purely one of law.” Id. In such
`circumstances, we review de novo the legal issues underlying the
`district court’s denial of summary judgment. Id.
`
`
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`2 We construe the submissions of a pro se litigant liberally and interpret
`them “to raise the strongest arguments that they suggest.” Triestman v. Fed.
`Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original) (internal
`quotation marks omitted).
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`9
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`The Copyright Act principally offers copyright protection for
`“original works of authorship.” 17 U.S.C. § 102(a). Pursuant to the
`statute’s terms, authors may control the copying of their original
`works and also retain “the exclusive rights” to “prepare derivative
`works based upon the copyrighted work.”3 17 U.S.C. § 106. Thus,
`unauthorized derivative works are typically afforded no copyright
`protection because they unlawfully infringe the exclusive rights of
`the original author. Id.; see also id. § 103 (“[P]rotection for a work
`employing preexisting material in which copyright subsists does not
`extend to any part of the work in which such material has been used
`unlawfully.”).
`
`The doctrine of “fair use” constitutes a critical and long‐
`standing limitation on the exclusive rights of the original copyright
`owner.4 Though only made a part of statutory copyright law in
`1976, “[f]rom the infancy of copyright protection, some opportunity
`
`3 Section 101 of the Copyright Act defines a “derivative work” as “a work
`based upon one or more preexisting works” such as a
`translation,
`fictionalization, “or any other form in which a work may be recast, transformed,
`or adapted.” 17 U.S.C. § 101. The definition further notes that such a work can
`consist of “editorial revisions, annotations, elaborations, or other modifications
`which, as a whole, represent an original work of authorship.” Id.
`4 See generally Authors Guild v. Google, Inc., No. 13‐4829‐cv, ‐‐ F.3d ‐‐, 2015
`WL 6079426, at *5 (2d Cir. Oct. 16, 2015) (“For nearly three hundred years, since
`shortly after the birth of copyright in England in 1710, courts have recognized
`that, in certain circumstances, giving authors absolute control over all copying
`from their works would tend in some circumstances to limit, rather than expand,
`public knowledge.” (footnote omitted)); Pierre N. Leval, Toward a Fair Use
`Standard, 103 HARV. L. REV. 1105 (1990) (discussing the doctrine of fair use within
`the context of the history and objectives of copyright law).
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`for fair use of copyrighted materials has been thought necessary to
`fulfill copyright’s very purpose, ‘to promote the Progress of Science
`and useful Arts.’” Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569,
`575 (1994) (alterations omitted) (quoting U.S. CONST., Art. I, § 8, cl.
`8). Under Section 107 of the Copyright Act, certain unauthorized
`“fair use of a copyrighted work,” for purposes such as criticism,
`comment, news reporting, teaching, scholarship and research, “is
`not an infringement of copyright” and thus is lawful.5 17 U.S.C. §
`107. While parody is not expressly mentioned in the statute, the
`Supreme Court has instructed that “parody, like other comment or
`criticism, may claim fair use under § 107.” Campbell, 510 U.S. at 579.
`
`jury’s factual
`In this case, Hars does not dispute the
`determination that Keeling’s use of Point Break material in her
`creation of PBL was “fair use in the way of a parody.” ROA, Dkt.
`No. 98, at 675. Indeed, she repeatedly disclaims any “fair use”
`challenge, explaining that she “is not concerned about whether
`Keeling’s script is a fair use of Point Break because it is completely
`irrelevant to any and all of Hars’ arguments.” Def.’s Reply Br. 20; see
`also id. at 20‐21 (“[T]he issue of whether Keeling’s script qualifies as
`fair use was astutely and consciously avoided by Hars in her brief.
`
`5 The Copyright Act lists four non‐exhaustive factors for courts to
`consider in determining whether a use is “fair”: “(1) the purpose and character
`of the use, including whether such use is of a commercial nature or is for
`nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the
`amount and substantiality of the portion used in relation to the copyrighted
`work as a whole; and (4) the effect of the use upon the potential market for or
`value of the copyrighted work.” 17 U.S.C. § 107.
`
`11
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`. . . Hars is not asking the Court to spend even one second of
`valuable time trying to determine whether Keeling’s script qualifies
`for fair use.”).
`
`Instead, Hars presents two legal arguments for why copyright
`protection should not extend to Keeling’s work, both of which were
`first raised in defendants’ summary judgment briefing and denied
`by the District Court.
`
`A. Copyright Protection: Fair Use
`
`First, Hars argues that an unauthorized derivative work like
`PBL categorically may not receive independent copyright protection,
`regardless of whether it makes fair use of its source material.6 This
`argument flows from the admittedly unusual posture in which this
`case arises. Typically, fair use is invoked as a defense against a claim
`of copyright
`infringement brought by
`the source‐material
`
`6 Both parties characterize PBL as a “derivative work.” See Def.’s Br. 1‐3,
`9‐18, 27‐40, 45‐51; Pl.’s Br. 1, 9, 21‐32. We note that, as a general matter,
`“derivative works” and “fair use” are discrete legal categories. Under the
`Copyright Act, a derivative work involves a transformation to the work’s
`“form,” 17 U.S.C. § 101, while fair use involves a transformation of the work’s
`“purpose and character,” 17 U.S.C. § 107. PBL is both—it involves the
`dramatization of a motion picture, making it a derivative work, and it involves a
`transformation of the motion picture’s character from serious to parody, making
`it non‐infringing fair use. The parties here seem to confuse the distinction
`between derivative works and fair use. Nonetheless, because neither party has
`raised this issue on appeal, and because our analysis applies equally to
`derivative and non‐derivative works so long as the work constitutes lawful fair
`use, we need not
`further address questions raised by
`the parties’
`characterization.
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`rightsholder. Here, however, Keeling invoked the fair‐use principle
`to establish an affirmative claim against defendants for unauthorized
`use of her PBL parody. Hars concedes that Keeling could use the
`“fair use” doctrine as a “shield” against a claim of copyright
`infringement, but argues that she may not use the doctrine as a
`“sword” to vest a work with independent copyright protection
`against third‐party infringement. Def.’s Br. 13‐14.
`
`This argument is inconsistent with the operative statutory
`language. The Copyright Act provides that derivative works are
`entitled to “independent” copyright protection, separate from any
`copyright in the preexisting material. 17 U.S.C. § 103(b). Though
`copyright protection expressly may extend to derivative works
`“employing preexisting material in which copyright subsists,” the
`statute cautions that protection “does not extend to any part of the
`work in which such material has been used unlawfully.” 17 U.S.C.
`§ 103(a) (emphases supplied).
` If, however, a work employs
`preexisting copyrighted material lawfully—as in the case of a “fair
`use”—nothing
`in the statute prohibits the extension of the
`“independent” copyright protection promised by Section 103.7 Id.
`§ 103(b). A close reading of the statute therefore makes plain that an
`unauthorized but lawful fair use employing preexisting copyrighted
`
`
`7 To be sure, the independent copyright protection in the new work is
`limited to that work’s original content: “[C]opyright in a compilation or
`derivative work extends only to the material contributed by the author of such
`work, as distinguished from the preexisting material employed in the work.” 17
`U.S.C. § 103(b).
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`13
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`material may itself merit copyright protection. It is not the
`invocation of fair use that provides the work copyright protection,
`and perhaps thinking so has created some confusion on the part of
`the defendant. It is the originality of the derivative work that makes
`it protectable, and fair use serves only to render lawful the
`derivative work, such that it may acquire—as would other lawful
`derivative works—such protection.
`
`Resisting this statutory principle, Hars argues that the case
`law does not permit the extension of independent copyright
`protection to an unauthorized fair use, and contends that the only
`court to have dealt with the issue found that “Congress did not
`contemplate such” a result. Def.’s Br. 14 (quoting Sobhani v.
`@Radical.Media, Inc., 257 F. Supp. 2d 1234, 1239 (C.D. Cal. 2003)). But
`in fact, Congress did expressly contemplate the extension of
`copyright protection where, as here, a work constituted non‐
`infringing fair use. The relevant legislative report stated that,
`
`[u]nder this provision [(i.e., Section 103(a) of the
`Copyright Act)], copyright could be obtained as long
`as the use of the preexisting work was not
`”unlawful,” even
`though
`the consent of
`the
`copyright owner had not been obtained. For
`instance, the unauthorized reproduction of a work might
`be ”lawful” under the doctrine of fair use or an
`applicable foreign law, and if so the work incorporating
`it could be copyrighted.
`
`H.R. Rep. No. 94‐1476, at 58 (1976) (emphases supplied). This
`language addresses precisely the issue raised in the instant appeal.
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`14
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`the
`the copyright owner”—here,
`Although “the consent of
`rightsholder in the Hollywood screenplay Point Break—“had not
`been obtained” by Keeling, her resulting parody PBL was “’lawful’
`under the doctrine of fair use,” and accordingly, it “could be
`copyrighted.”
`
`We have previously confirmed that, because “[d]erivative
`works are explicitly included in the subject matter of copyright as
`defined by the Copyright Act,” the mere fact that a litigant’s
`unauthorized “creations are derivative works is in itself, of course,
`no bar to copyrightability.” Durham Indus., Inc. v. Tomy Corp., 630
`F.2d 905, 909 (2d Cir. 1980) (citing 17 U.S.C. § 103). And this
`statutory interpretation is consistent with the animating policy
`behind the fair use doctrine—to fulfill copyright’s core purpose of
`promoting development in arts and science. See Campbell, 510 U.S. at
`575. Without any possibility of copyright protection against
`infringement for her original fair‐use parody, playwrights like
`Keeling might be dissuaded from creating at all.
`
`Accordingly, we agree with the District Court’s holding that,
`when a derivative work’s unauthorized use of preexisting material
`is fair use and the work contains sufficient originality, its author
`may claim copyright protection under § 103 for her original creative
`contributions. See Keeling, 2011 WL 1899762, at *1.
`
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`B. Copyright Protection: Selection, Coordination,
`and Arrangement of Un‐Protectable Elements
`
`Hars’s second legal argument fares no better. Hars contends
`that if an author’s original contributions to a derivative work consist
`solely of non‐copyrightable individual elements, those contributions
`cannot support a copyright. Specifically, she claims that Keeling’s
`original contributions to the PBL script are insufficient to warrant
`copyright protection because
`they consist entirely of non‐
`copyrightable stage directions and theatrical devices. See 17 U.S.C.
`§ 102(b) (providing that copyright protection does not extend to
`“any idea, procedure, process, system, method of operation,
`concept, principle, or discovery, regardless of the form in which it is
`described, explained, illustrated, or embodied in such work”).
`
`We disagree. As the District Court properly found, copyright
`law protects not only the individual elements themselves, but the
`creative choices made
`in selecting and arranging even un‐
`copyrightable elements. Indeed, the Copyright Act itself explicitly
`protects “compilations,” 17 U.S.C. § 103, and a long line of case law
`confirms that copyright covers compilations of raw data or facts,
`elements which are not themselves protectable, so long as the
`compilation itself (including the arrangement of those elements)
`possesses some “minimal degree” of creativity, “no matter how
`crude, humble or obvious.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340, 345 (1991) (internal quotation marks omitted); see also
`Harper & Row v. Nation Enters., 471 U.S. 539, 547 (1985) (“Creation of
`a nonfiction work, even a compilation of pure fact, entails
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`originality.”); Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 80 (2d
`Cir. 2004) (“It is well settled that compilations of fact may be
`copyrightable even though facts themselves are not protected”). The
`Supreme Court has made clear that even a telephone directory may be
`copyrighted if its non‐copyrightable factual elements are arranged
`with the requisite “minimal degree” of originality. See Feist, 499 U.S.
`340. Keeling’s original contributions to PBL clearly exceed this
`creativity threshold.8
`
`To be sure, Hars is correct that Keeling could not copyright
`the commonly used individual stage directions and theatrical
`devices—e.g., the concept of drafting an audience member to play
`the lead, the reliance on cue cards, or the use of squirt guns—which
`together comprise PBL’s jokes. But Keeling has never sought to do
`so. Rather, as the District Court correctly held, “Keeling’s creative
`
`8 We similarly reject Hars’s related argument that Point Break material
`improperly “pervade[s]” the PBL script in contravention of Eden Toys, Inc. v.
`Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982), superseded by rule on other
`grounds as recognized in Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726
`F.3d 62, 84 (2d Cir. 2013). See Def.’s Br. 35‐37. To the extent it even applies in this
`case, which is uncertain, Eden Toys requires merely “some substantial, not merely
`trivial, originality” to meet the standard for sufficient originality. 697 F.2d at 34
`(internal quotation marks omitted). PBL’s transformative parody fulfills this
`standard, and its use of a substantial portion of the underlying work presents no
`hindrance to findings of either fair use or originality. Cf. Campbell, 510 U.S. at 588
`(“When parody takes aim at a particular original work, the parody must be able
`to conjure up at least enough of that original to make the object of its critical wit
`recognizable.” (internal quotation marks omitted)); Bill Graham Archives v.
`Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006) (holding that even the use
`of an entire original work may be permissible fair use, so long as the use is
`“tailored to further [the new work’s] transformative purpose”).
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`contribution, and thus her copyright, is in the original way in which
`[she] has selected, coordinated, and arranged the elements of . . . her
`work” to create new parodic meaning. Keeling v. New Rock Theater
`Prods., LLC, No. 10 Civ. 9345 (TPG), 2013 WL 918553, at *2 (S.D.N.Y.
`Mar. 11, 2013) (internal quotation marks omitted) (quoting
`Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1004 (2d Cir. 1995)).
`
`Hars’s legal challenges to the jury’s infringement verdict thus
`
`fail.
`
`II. Challenges to Jury Instructions
`
`We now turn to Hars’s challenges to the District Court’s jury
`instructions. Because Hars failed to object to the charge at trial, we
`review these claims for “plain error,” and will only grant relief if
`there was “(1) error, (2) that is plain, (3) that affects substantial
`rights, and (4) the error seriously affects the fairness, integrity, or
` United States v.
`public reputation of
`judicial proceedings.”
`Weintraub, 273 F.3d 139, 145 (2d Cir. 2001) (alterations and internal
`quotation marks omitted); see also Fed. R. Civ. P. 51(d)(2) (“A court
`may consider a plain error in the instructions that has not been
`preserved as required by Rule 51(d)(1) if the error affects substantial
`rights.”). “A jury charge is erroneous if it misleads the jury as to the
`correct legal standard, or if it does not adequately inform the jury of
`the law.” Hathaway v. Coughlin, 99 F.3d 550, 552 (2d Cir. 1996).
`Conversely, “a jury instruction will be deemed adequate if the
`charge, taken as a whole, is correct and sufficiently covers the case
`so that a jury can intelligently determine the questions presented to
`
`18
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`
`
`it.” Id. at 553 (internal quotation marks omitted). We
`have
`previously observed that the plain‐error exception to Rule 51’s
`objection requirement “should only be invoked with extreme
`caution in the civil context.” Rasanen v. Doe, 723 F.3d 325, 333 (2d
`Cir. 2013) (internal quotation marks omitted) (quoting Pescatore v.
`Pan Am. World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996)). “To
`constitute plain error, a court’s action must contravene an
`established rule of law, and go to the very essence of the case.” Id.
`(alterations, citation, and internal quotation marks omitted) (quoting
`Lavin‐McEleney v. Marist Coll., 239 F.3d 476, 483 (2d Cir. 2001);
`Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)).
`
`Hars contends that the jury instructions were erroneous in
`two respects: first, she argues that the District Court improperly
`excused Keeling from proving that her original contributions to the
`PBL script were sufficient to merit copyright protection; and second,
`she argues that the District Court failed to enumerate the four
`statutory “fair use” factors in its instructions to the jury. Neither
`constitutes plain error.
`
`A. Originality Instruction
`
`In her first challenge to the jury charge, Hars argues that the
`District Court failed to charge the jury that “[o]riginality is a
`constitutional requirement” and is the “sine qua non of copyright.”
`Feist, 499 U.S. at 345‐46; see Def.’s Br. 27. Hars points out that the
`District Court never provided a separate instruction on originality to
`the jury. Hars also contends that the District Court misrepresented
`
`19
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`
`
`the